As trial nears, 9th Circuit Court accused of favoring Hollywood

WASHINGTON — The California-based 9th U.S. Circuit Court of Appeals is known for progressive rulings that champion individual rights over government and corporations, but when it comes to show business, the "Hollywood Circuit" — as it has been dubbed — stands accused of routinely siding with the home-turf entertainment industry.

Judges famously sided with film studios in the early 1980s when the studios sued Sony for infringing their copyrights by selling the Betamax video recorders. Had the Supreme Court not reversed the decision, the home video industry might never have been born.

In another case, the majority sided with "Wheel of Fortune" TV personality Vanna White when she claimed her "right to publicity" had been violated by a commercial spoof featuring a robot with a blond wig who stood next to big block letters.

Now, the court's alleged pro-Hollywood slant is being cited again by a screenwriter's daughter who on Tuesday will ask the Supreme Court to overturn a 9th Circuit decision that blocked her copyright claim against Metro-Goldwyn-Mayer in a dispute over the 1980 movie "Raging Bull."

When it comes to copyright infringement claims from artists, entertainment companies haven't lost a single case at the 9th Circuit in 20 years, according to Los Angeles lawyer Steven T. Lowe.

"The studios and networks always win," said Lowe, who is supporting Paula Petrella, the daughter of Frank Petrella, who, along with boxer Jake LaMotta, wrote a 1963 screenplay that was said to be the basis for the Oscar-winning film.

Some of the court's own jurists acknowledge the 9th Circuit's unusually aggressive stance on the issue. "Our circuit is the most hostile to copyright owners of all the circuits," Judge William Fletcher wrote last fall, even as he joined judges in rejecting Petrella's claim.

Chief Judge Alex Kozinski has also taken the court to task at times for being overprotective of the entertainment industry. In his colorful dissent in the 1992 Vanna White decision, Kozinski wrote that the majority's "Orwellian" decision to give the game show hostess a new property right to stifle a parody that merely evoked her image was a "dangerous" precedent.

It was Kozinski who quipped in that case that, "For better or worse, we are the court of appeals for the Hollywood Circuit." His point didn't seem to be about a pro-Hollywood bias, but instead that the 9th Circuit has a special obligation to strike the right balance in copyright cases because of its jurisdiction over the entertainment capital, where many such claims arise.

But over the years, the label stuck.

Today Kozinski bristles at the suggestion that the 9th Circuit takes sides.

"We get a lot of cases, but we go every which way," Kozinski said in an interview. "I don't think we are particularly protective of studios."

But being so close to the nation's movie-making capital also means many of the judges are familiar with Hollywood and sometimes rub elbows with producers and stars. Kozinski, whose son is a film editor, made a cameo appearance in "Atlas Shrugged: Part II," appeared in three documentaries and has his own IMDb (Internet Movie Database) page.

"I cut my teeth being on 'The Dating Game' when I was 18," Kozinski said. "If you grow up out here, it is in the blood…. It is hard to live many years out here without being inured to the blandishments of Hollywood." (For the record, Kozinski, or Bachelor No. 2, got the date.)

He holds movie nights at the 9th Circuit courthouses in Pasadena, San Francisco and occasionally Seattle, where judges and lawyers pitch in for pizza and beer, watch films and hear from scriptwriters and other industry insiders about the movies. Director George Lucas used to provide the court with films before they came out on DVDs, he said, and Kozinski has dined with Clint Eastwood, "a very sweet, humble guy."

He said it is important to protect the rights of ownership to speech because it encourages more speech. If speech is not protected by copyright, he warned, there will be less incentive to produce it.

"It's a fine balance, and all my colleagues are quite sensitive to it," he said. "The best way to hurt the system is to favor one side or the other."

David Nimmer, an expert on copyright law who teaches at UCLA, said the 9th Circuit has a "spotty record" on copyright law, but that doesn't mean the studios always win. In 2010, the 9th Circuit ruled against a studio in a breach-of-contract claim by two screenwriters who said the movie "The Last Samurai" with Tom Cruise was based on their screenplay. The court also sided with music file-sharing program Grokster in 2004, saying it was not liable for users' copyright infringement.

Nimmer said it was not hard to imagine that certain industries might enjoy a hometown advantage in some circuits, but he could not say that the 9th tended to favor studios over artists.

"I would not say they are hostile to copyright infringement claims," Nimmer said.

On Tuesday, the Supreme Court will hear the case of Petrella vs. MGM. A win for Petrella would mean she could continue her copyright claim against MGM.

After her father died, Petrella renewed the copyright for the screenplay in 1991, just inside the 28-year deadline set in the Copyright Act. But it wasn't until 2009 that she sued MGM, contending the continuing distribution of the film violated her copyright.

Lawyers for the studio said Petrella had waited too long to sue. A district judge and the 9th Circuit agreed and threw out her suit. The decision relied on an old doctrine known as "laches," under which judges sometimes reject claims if they believe the plaintiff deliberately chose to wait in filing a suit.

MGM's lawyers said the studio had spent more than $8.5 million since 1991 to advertise, market and distribute "Raging Bull," and it was not fair for Petrella to then claim she was due a portion of the profits.

"Ms. Petrella delayed filing suit for 18 years, until key witnesses died or became unavailable, thereby impairing MGM's ability to defend itself against her meritless claim of infringement," said Mark A. Perry, a Washington lawyer who will represent the studio before the high court.

Last summer, University of Pennsylvania Law Professor Stephanos Bibas appealed Petrella's case to the Supreme Court and cited the 9th Circuit's unusual stance toward copyright claims. He noted the Copyright Act does not set a time limit on such claims.

Lowe, the Los Angeles attorney, said the Supreme Court's decision would affect future cases and could send a message to the 9th Circuit. "It would have a lot of symbolic importance, to say you can finally take up a case against the studios."

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